Andhra Pradesh High Court - Amravati
Sri .Kolla Satteyya Gupta Bujji vs Sri Buddharaju Narasimha Varma on 25 June, 2024
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
1
APHC010401952023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3417]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY FIFTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
IA 1 OF 2023
IN
FIRST APPEAL NO: 427/2023
Between:
Sri .Kolla Satteyya Gupta @ Bujji ...APPELLANT
AND
Sri Buddharaju Narasimha Varma ...RESPONDENT
Counsel for the Appellant:
1. KAMBHAMPATI RAMESH BABU
Counsel for the Respondent:
1. TADDI NAGESWARA RAO
The Court made the following:
ORDER:
(Per Hon'ble Sri Justice U.Durga Prasad Rao)
Assailing the judgment dated 20.02.2023 in O.S.No.36/2016
passed by learned IV Additional District & Sessions Judge, Vizianagaram
granting alternative relief of refund of advance amount of Rs.30,00,000/-
to the plaintiff by the defendant in a specific performance suit, the
defendant filed A.S.No.427/2023 and as there is a delay of 42 days in
filing the said appeal, he filed the instant I.A.No.1/2023 under Section 5
of Limitation Act to condone the said delay.
2. Heard arguments of learned counsel for petitioner/appellant/
defendant Sri Kambhampati Ramesh Babu and Sri Taddi Nageswara
Rao, learned counsel for respondent/plaintiff.
3. Severely fulminating the judgment of the trial court directing the
defendant to refund the advance amount of Rs.30,00,000/-, learned
counsel for petitioner Sri Kambhampati Ramesh Babu would argue that
the petitioner/defendant has clearly mentioned in his written statement
about the circumstances in which the agreement to sell was executed by
him and he has also taken a plea that he did not receive the advance
amount of Rs.30,00,000/- except borrowing an amount of Rs.10,00,000/-
from the mother-in-law of the plaintiff. However, simply going by the
recitals in Ex.A1-agreement to sell, the trial court wrongly held as if the
mortgage transaction between the defendant and the mother-in-law of
plaintiff is false and the defendant under Ex.A1-agreement to sell
received Rs.30,00,000/- as advance and ultimately gave a finding that
the plaintiff is not entitled for specific performance, but he deserve refund
of advance amount of Rs.30,00,000/- from the defendant and accordingly
decreed the suit for alternative relief. Learned counsel would argue that
the defendant has good grounds to succeed in the appeal as he has not
received the alleged advance amount of Rs.30,00,000/-. However, in
presenting the appeal there is a delay of 42 days inasmuch as due to ill-
health as well as financial problems, the defendant could not file the
appeal within the period of limitation and in that process the delay of 42
days was occurred which is neither willful nor wanton and unless the
delay is condoned and defendant is permitted to prosecute the appeal,
serious prejudice will be caused to him. Learned counsel thus prayed to
allow the petition.
4. Per contra, Sri Taddi Nageswara Rao, learned counsel for
respondent/ plaintiff while vehemently opposing the petition, argued that
the petitioner/ defendant has no valid contest in the appeal, inasmuch as,
he failed to prove the alleged mortgage transaction between him and the
mother-in-law of plaintiff and on the other hand, in one way, he admitted
the execution of Ex.A1-agreement to sell. Therefore, taking these facts
into consideration, the trial court held that Ex.A1- is a genuine document
whereunder he received an advance of Rs.30,00,000/- and ultimately
directed the defendant to refund the advance amount holding that the
plaintiff is not entitled for specific performance decree.
5. Learned counsel further argued that in order to avoid refund of the
advance amount, the defendant filed the appeal belatedly without any
plausible cause. Learned counsel would submit that though petitioner
pleaded his ill-health as one of the causes for delay, he did not produce
any scrap of medical record to show that the petitioner was in fact bed
ridden or hospitalized during the relevant period. Thus, the said ground
cannot be considered. So far as the financial constraints as alleged in the
petition are concerned, learned counsel would argue that the plaint
schedule property is a rice and oil mill which is being run by the
defendant and therefore, it is preposterous to plead that the defendant
has no financial capacity to file the appeal within time. These two
reasons mentioned in the petition were not satisfactorily established by
the appellant to condone the delay. Learned counsel placed reliance on
the judgment in Majji Sannemma alias Sanyasirao v. Reddy Sridevi
and Ors.1 to contend that when the petitioner fails to offer satisfactory
explanation for the delay, the court shall not come to his rescue. He thus
prayed to dismiss the petition.
2021 SCC OnLine SC 1260
6. The point for consideration is:
Whether petitioner showed sufficient cause for condoning the
delay of 42 days in filing the appeal?
7. We gave our anxious consideration to the above respective
submissions of both the learned counsel. As stated supra, the trial court
granted alternative relief to the plaintiff for refund of advance amount of
Rs.30,00,000/- paid by him to the defendant under Ex.A1-agreement to
sell. The defendant contended that he did not receive the advance
amount as pleaded. Be that as it may, admittedly there is a delay of 42
days in preferring the appeal. The petitioner/defendant projected two
grounds for the delay i.e., is ill-health and financial problems during
relevant period. As rightly argued by learned counsel for
respondent/plaintiff, the petitioner has not filed a scrap of medical record
to show that the petitioner either suffered ill-health or hospitalized during
the relevant period. Except the oral assertion of the petitioner, there is no
other plausible material to consider his case. So, the said ground
projected by the petitioner cannot be accepted. The next ground shown
by him is financial problems. This ground also in our considered view
does not need consideration for the reason that the plaint schedule
property which is said to be offered to sell is rice and oil mill owned by
the petitioner/ defendant. It is not his case that the said mill became
defunct and not fetching any income. Having regard to the nature of
asset possessed by him, it would be difficult to comprehend that he was
in financial constraints and could not afford to file appeal by engaging a
counsel and paying court fee.
8. Thus both the grounds shown by him are not appealing to us to
condone the delay. During arguments, it is submitted that the petitioner
has a strong ground to succeed in the appeal and therefore, his right of
appeal may not be stifled on a technical ground of delay in filing the
appeal. We are afraid, his strength or weakness in the appeal itself
cannot be a ground to condone the delay when he failed to show his
diligence in prosecuting the appeal in time. It is only when the petitioner
is able to show a plausible reason for the delay, the strength of arguable
grounds in the appeal may be considered as an additional factor that is
not the case here. In the decision cited by learned counsel for
respondent/plaintiff Hon'ble Apex Court deprecated the practice of
allowing the delay condoning petition on the sole ground that by mere
allowing the petition no prejudice would be caused to the other side.
Thus, we find no merits in the petition.
9. Accordingly, the petition is dismissed. No costs.
______________________
U.DURGA PRASAD RAO,J
_________________________________________
VENKATA JYOTHIRMAI PRATAPA,J
25.06.2024
NNN
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
IA 1 OF 2023
IN
FIRST APPEAL NO: 427/2023
25th June, 2024
NNN
